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Today, this democracy is 25 years old. We need to appreciate the leadership we’ve had so far. This means we need to celebrate our presidents (including those who had the opportunity but couldn’t make 2 consecutive terms). A moment of celebration, I think, should also be a moment of empathy. Let’s empathise with our presidents, past, present and even future. Let’s consider their fears, worries and, even most importantly, their challenges. Trust me, their challenges are innumerable (and, I’m not saying I’ve been a president before). Just trust me.

Perhaps, the greatest challenge in political leadership is how to get the ‘right’ persons to work with (and, here, I’m speaking within the context of presidents and their ministers). Getting the right people entails combining competence with loyalty in the right proportions. But that’s not all, a leader has to do this within certain legal, time, sociocultural and economic frameworks. So, first of all, its not easy to get the men and women for the job.

The second great challenge, I think, is the ability to, having appointed some persons to work with, instil discipline into such appointees. Of course, if political appointees were kids, a leader could use disciplinary tools like, reprimand, corporal punishment, ‘silent corner’, etc. to achieve some discipline. But when you are dealing with grown ass men and women with greys in all manner of places, then, you know it’s a different ball game. In such circumstances, dismissal becomes the only (if not the most) viable way to ensuring discipline.

So you’ll probably be wondering why dismissal isn’t used a lot of the times. Well, thing is dismissal, too, isn’t without serious questions. The first question is political clout – can you just dismiss the woman you have rewarded with a ministry for her enormous contribution to your journey to office? Of course, if her contribution was merely pecuniary, you could still venture a wager and hope to find other ways of settling your pecuniary debts with her. How about if she represents a major voting constituency?

The second question is replacement. It is true that one man’s misfortune is another’s blessing – sacking an appointee presents a job opportunity for another party member. So, the replacement question is not really about nominal intra-party equations. Rather, the replacement question takes us back to the beginning of the dilemma – getting the ‘right’ person to work with. Only that the question turns into how may I get a better (or even similar) replacement. A leader would still have to face the same legal, time, sociocultural and economic framework and above all loyalty-competence mix; this time round afresh and with even more rigour.

The third question (which is inseparably-linked with replacement) is assurance. Political situation is probably one of the most unpredictable on earth. Even the weather has a say in it. Even army-worms may have a say. Persons with impeccable professional acumen have been drowned in exceptional failures in political situations. CVs are helpful but certainly not very reliable anymore. The assurance question here is: what’s the guarantee that the new appointee won’t commit even more grave blunders? There’s a conventional answer to this question. It has something to do with known devils and unknown angels.

But there’s also a fourth question – the ‘gang-up’ situation. No one understands allegiance better than politicians. A president who shows signs, no matter how faint, of freely plucking off ministers for wrongdoing also exposes herself to the ‘gang-up’ situation. Soon, the ministers would realise that none of them is beyond wrongdoing. Soon, they would realise that none of them is safe. Soon, they would agree among themselves that all should be for one and one for all. They would gang up and pit up against the President. And, if the President is to rely on them for advice in ensuring discipline (which he’s bound to), what would be the direction of such advice? No one wants that. Certainly, not when the opposition is warning up on the touchline.

Often, dismissal for wrongdoing is considered a strong sign of good governance. It shows that a president has a good sense of judgement. It also shows that she’s in “control”. In fact, governments lose elections simply because they failed to sack some appointees. But often, too, dismissal may be seen as admission of incompetence; and if it happens often (as principle-based dismissal is bound to), then, the opposition (rather than the government) becomes the ultimate beneficiary. This is the fifth question – confidence. How do you run your government in such a way as to not lose the confidence of the electorates?

What I’m trying to say is that the next time you ask a president to fire an appointee, do not just focus on one side of the equation. Do well to consider all these questions and more. Happy 25th birthday to this democracy that the events of 31st December, 1981, gave us.

In the previous part of this note, I concluded that CHRAJ could only clear the Minister of the allegations of conflict of interest violations if it finds the following: (1) That the Minister did not breach the BoG rules on issuing such bonds; (2) That the alleged crony-relationship did not exist; or (3) that even if the alleged crony-relationships existed, the Minister has taken refuge at the safe harbour under Article 78(3).

In this concluding Part of my note, I’ll outline the findings of CHRAJ in respect of each of these 3 issues. I’ll do this by simply reproducing the relevant parts of the report.

(1) Did the Minister Breach the BoG Rules?

In respect of the allegation that the Minister breached the BoG rules for issuing such bonds, CHRAJ found that the Minister did breach the rule. Here are some of the findings in this respect at pages 109 and 117 respectively:

“In terms of the 7-year and 15-year bonds, the BOG should have notified the market at least two (2) weeks in advance of their issue since they were “new products” in accordance with the Bank of Ghana Guidelines. But as the evidence shows, the market was notified only one (1) day on the availability of the 7-year and 15-year bonds prior to the commencement of trading. This period is shorter than the 2-3 days period that the previous issues provided.”

“The publication by BOG on the availability of the financial instrument (5-year and 10-year bonds) was not done “two weeks prior to the commencement of the Calendar period which was state as 30 March 2017 as required by Rule 2.0.(a) of the BOG Guidelines. The publication was done on same day trading was to commence.”

(2) Did a Crony-relationship Exist?

In respect of the allegation that the Minister has interest in Batabank and Enterprise, CHRAJ found such interest to be significantly present. It says on page … of the report:

“The evidence before the Commission shows that before assuming or on the assumption of duty, the Respondent had and still has personal interests, some pecuniary and other non-pecuniary. The Assets Declaration Form which the Respondent completed and submitted to the Auditor-General in compliance with Article 286(6) of the Constitution and dated 12 March 2017 discloses that the Respondent has employment or business interests listed as unspecified shares in Databank, Ventures and Acquisition and Enterprise Group Ltd.”

CHRAJ found that Trafgarne, too, has interests in both Templeton AND Enterprise. It says on page 120 of the report that:

“FT [Franklin Templeton] unaudited report 2017indicates that the “Honourable Trevor G. Trefgarne was appointed to the Board of Franklin Templeton Investment Funds on November 29, 2002. He is the Chairman of Enterprise Group Limited, Ghana, and has been Diretor of a number of U.K. Listed investment funds including Templeton Emerging Markets Investment Trust, Recovery Trust (Chairman) and Gartmore High Income Trust. He has extensive experience of the management of listed companies in the UK and Africa”

(3) Did the Minister Dock at the Safe Harbour?

The Ministers did not allege and CHRAJ did not find any evidence that the Minister made a disclosure to Parliament on the material facts of his relationship with Templeton (to which 95% of bond of the US$ 2.25 billion bonds was sold in breach of the BOG rules). As a matter of fact, CHRAJ found that the Minister concealed some of his assets in breach of the asset declaration laws. It stated at page 120 as follow:

“It is observed that the Respondent [Minister] had other assets which he did not disclose in his Asset Declaration Form. They include his interest in Databank Financial Services Limited and Databank Brokerage Limited.”

In the teeth of all this, CHRAJ was still able to conclude that:

“[T]he allegations by the Complainant that the Respondent has contravened Article 284 of the 1992 Constitution by putting himself in a conflict of interest situation in relation to the issuance of the 5-year, 7-year, 10-year and 15-year bonds, have not been substantiated.” (Underlining mine)

How CHRAJ Erred

But, hey, how did CHRAJ arrive at this conclusion? We may get the answer to this question from the reasoning at page 133 of the report:

“There was also no evidence before the Commission at this stage that there was a personal benefit to the Respondent or his business and other relations. On the basis of the foregoing, it is reasonable to conclude that though there was the significant potential that the Respondent’s personal interest could have been in conflict with the vast personal interest in the securities sector, it was not the case in this specific bond issue.” (Underlining is mine)

It may be obvious from this reasoning that CHRAJ got to this rather lonely conclusion by relying on a rule in the Okudzeto Ablakwa (No. 2) case. The rule in that case is that a person cannot be guilty of a breach of Articles 23, 35(8) and 296 (NOT Article 284) unless she is found to have actually derived a “personal benefit” from the transaction. But as I’ve disclosed in the previous part of this note, this rule has absolutely nothing to do with Article 248 conflict of interest claims; and shouldn’t have come in here at all.

Way Forward

CHRAJ’s decision may be reviewed by the courts. This allows for 3 things to happen. First, the Minister may seek a review of the decision if he honestly believes that CHRAJ’s findings do not reflect the facts. Second, the complainant, too, may seek a review from the courts if he believes (as I do) that CHRAJ’s decision is at war with the facts it found. The final option is for a citizen to seek a review.

We know that CHRAJ has cleared the Minister of the allegation of breach of conflict of interest rules. My claim is that the evidence on record could not allow CHRAJ to come to that conclusion. I’ve been writing this note to show this. In Part 1 of this note, I disclosed some of the challenges that the Deputy A-G faced in defending the Minister at CHRAJ. In Part 2, I attempted a simplified explanation of the concept of conflict of interest. In this Part 3 of the note, I’ll begin to dissect the CHRAJ report. Particularly, I’ll outline the circumstances under which CHRAJ could clear the Minister of the allegations.

The Allegations

The Complainant’s allegations are that the Minister cooked the US$ 2.25 billion bond deal for his cronies. According to him, the Minister did this by side-stepping the Bank of Ghana (BoG) rules on how such bonds are to be issued.

The Complainant outlines the alleged crony-relationship between the Minister and the persons who took the bond. He says that: (1) the Minister has interests in certain companies, particularly, Enterprise Group Limited (Enterprise). Enterprise owns Databank, a company in which the Minister has significant interest; (2) one Trevor G Trefgarne is a director at Franklin Templeton Investment Limited (Templeton). Templeton is the entity which acquired as much as 95% of the bonds; (3) the same Trefgarne is the chairman or director at Enterprise. By these facts, the Complainant alleges that the Minister, a “public officer”, is found in “the position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office” contrary to Article 284 of the Constitution.

Clearing the Minister

CHRAJ could only clear the Minister of the allegations if it makes the following 3 major findings. First, CHRAJ has to find that the Minister did not breach the BOG rules in issuing the bonds in question. Ordinarily, one needs not show a breach of these rules in order to prove the existence of conflict of interests. However, such breaches, when proven, go a long way to lend substantial credit to the allegation of conflict of interest violations.

Second, CHRAJ has to find that the alleged crony-relationships don’t exist. This second finding may be arrived at by any 1 of 2 sub-findings: either that (a) Trefgarne was not a director at Templeton and also not a director or chairman at Enterprise; or that (b) the Minister does not have any interest in Enterprise or the other related persons or entities. If the Commission finds that the crony-relationship is non-existent, the Complainants case collapses; in which case there would be no need to make the third finding. For the Commission to move to the third finding, therefore, it should have found that the alleged crony-relationships existed.

Nonetheless, a finding that the crony-relationships exist would still not be enough to conclude that the Minister is guilty of a breach of the conflict of interest rules. This is because of the ‘safe harbour’ opportunity offered by our Constitution. On the other hand, if the Commission finds that the alleged crony-relationships exist, it needs to go further to make the third finding. The third finding should be that the Minister, though cough in a crony-relationship, has docked himself at the ‘safe harbour.’ To benefit from the safe harbour, however, two things must happen: (a) the Minister should have disclosed the material facts of such crony-relationships to Parliament prior to the transaction; and (b) Parliament should have independently approved that the Minister continue to oversee the transaction notwithstanding the crony-relationships.

For this proposition (of disclosure to Parliament and prior Parliamentary approval), I rely on Article 78(3) of the Constitution. The Article provides that:

“A Minister of State shall not hold any other office of profit or emolument whether private or public and whether directly or indirectly unless otherwise permitted by the Speaker acting on the recommendations of a committee of Parliament on the ground (a) that holding that office will not prejudice the work of a Minister; and (b) that no conflict of interest arises or would arise as a result of the Minister holding that office.”

In order to not constitute myself into an oracle, I would make a brief detour to demonstrate accountability in respect of my reliance on the provision. A careful reading of the Article 78(3) would reveal that its essence (which I believe has sadly been ignored over the years) is to provide a safe harbour for Ministers who may be caught up in Article 284 conflict of interest situations.

Would shareholding or directorship amount to “office” within the intendment of Article 78(3)? Of course! This is why: directorship of a company is an office for “emolument”. Shareholding in a company, too, is a profit-making venture. Both shareholding and directorship are examples of direct interest. It’s worth stressing however that the provision is not limited to direct interests. It also talks of indirect interests. Why? Because, a person may not be a shareholder or a director personally. She may, however, be closely related to or associated with a shareholder, director or even the company itself in such a way as to put her in a situation where her interest (though impersonal) may clash with her duties to protect the interest of the public. Conflict of interests rules reins in such indirect situations, too. For example, I may not be a shareholder or director of a company; but my spouse may. Such situations may fall within the “indirectly” component of the Article.

By way of summary, CHRAJ could only clear the Minister if it finds the following: (1) That the Minister did not breach the BoG rules on issuing bonds; (2) That the alleged crony-relationship did not exist; and (3) that even if the alleged crony-relationships existed, the Minister has taken refuge in a safe harbour under Article 78(3). In all this, you would observe (and in line with the explanation of the conflict of interest in Part 2 of this note) that there is no requirement that the persons in question should have actually intended or caused an injury to the principal or made a gain out of the transaction. In other words, there is no requirement that the Minister should have actually “cooked” the deal for Templeton or actually made a profit.

The Fatal Misunderstanding

One of the cases that the Deputy A-G cited to the Commission is the Okudzeto Ablakwa (No.2) case (2012). In that case the Supreme Court gave a check-list for determining a claim against public officials. The Supreme Court (per Justice Brobbey) stated that one has to answer the additional question – “did the decision-maker profit by the decision or action (to provide the basis for conflict of interest or economic gain)?” This question, when put within this context, would imply that an adjudicator cannot find a violation of conflict of interest rules unless he also finds that the public officer actually made a profit from the transaction.

The question, however, is whether this understanding of the Supreme Court decision is accurate. A more committed reading of the Okudzeto Ablakwa line of cases would reveal that this understanding of the decision is morbid. This is why:

In Okudzeto Ablakwa (No. 1), the Respondent Attorney-General, by way of preliminary objection, prayed the Supreme Court to dismiss the writ on the basis that CHRAJ (rather than the Supreme Court) has exclusive original jurisdiction over the enforcement of Article 284 conflict of interest claims. The Supreme Court, however, overruled the A-G’s objection on the basis that the Plaintiffs’ case turned more on other constitutional provisions than Article 284. These other provisions included Article 23, Article 35(8) and Article 296. As a result, Okudzeto Ablakwa (No. 2) was decided not on Article 284.

As a matter of fact, the checklist which the Deputy A-G cited to the Commission was never in respect of Article 284. It was rather in respect of Articles 23, 35(8) and 296 only. This is what the very learned Justice Brobbey said before laying out the checklist:

“For a complainant to succeed in an action brought under Articles 23, 35(8) or 296 based on these conditions, it is essential to establish the following …”

Justice Brobbey, then, went on to list the 7-item checklist which the Deputy A-G cited to CHRAJ. In fact, he went on to state further that:

“Since specific remedy has been provided for investigating complaints of conflict of interest [at CHRAJ], the plaintiffs were clearly in the wrong forum when they applied to this Court to investigate complaints relating to conflict of interest involving those public officers.”

Quite clearly, therefore, the Supreme Court did not consider Article 284 at all in the case. Accordingly, it did not (and could not) possibly have added a criterion which requires evidence of actual gain or injury for a breach conflict of interest rules to be proven. Therefore, I submit, respectfully, that the Deputy A-G’s understanding finds no place within the hallowed principles of conflict of interest, the jurisprudence of the Supreme Court or anywhere for that matter.

Up Next

Should I find time to continue this note, I would digest CHRAJ’s findings and humbly inform you on the following: (1) whether the Commission relied on the Deputy A-G’s misunderstanding of the decision in Okudzeto Ablakwa (No. 2); and (2) the extent to which such reliance (if any) affected CHRAJ’s final decision to clear the Minister of the allegation of conflict of interest.

Before I go, however, this is what the Commission said:

“There was also no evidence before the Commission at this stage that there was a personal benefit to the Respondent or his business and other relations. On the basis of the foregoing, it is reasonable to conclude that though there was the significant potential that the Respondent’s personal interest could have been in conflict with the vast personal interest in the securities sector, it was not the case in this specific bond issue.” (I did the underlining)

In the first part of this note, I said I would do a series of notes showing how CHRAJ’s decision on the Bond Saga complaint against the Minister of Finance fails to reflect the evidence it has on record. Thankfully, last night’s festivities went well – I was literally jumping from one party to another. I met with friends I have not seen in a while.

In this second part of the note, I will attempt a simplified explanation of a very difficult subject – conflict of interest. This explanation is to have us on the same page before I attempt a surgery of the report.

Meaning

Conflict of interest occurs when a person (an agent) is in a position where her personal interest interferes with the interest of another person (her principal) for whom and in whose interest she is supposed to act. In simple terms, conflict of interest occurs when a person finds herself in a position where she may be seen as serving two masters. It is simply a position of divided loyalty.

Personal and Impersonal

The interest may be personal or impersonal, but it is still ‘personal’. It is personal where the interest involves the interest of the actor personally. This happens when, for example, I sell my own car to Marcia who has asked me to by her a car (without me disclosing to her that the car I am selling to her is mine). Here, the car is mine; but the problem is that we won’t really be sure if I’ll be protecting Marcia’s interest or mine. On the other hand, the conflict is impersonal when it involves the interest of an organisation or a person other than the actor’s. Same example, except that the car in question here belongs to my mum or my company. In this case, too, one may not be clear whose interest – Marcia’s or my mum’s – I would protect.

Actual and Potential

Conflict of interest may also be actual or potential. It is actual if the actor did actually act against the interest of the person whose interest he is supposed to protect. Still with the car example, there would be actual conflict of interest if I sold the car to Marcia above the market price (so as to make a secrete profit). On the other hand, it is potential conflict of interest if there is a possibility or probability, no matter how small, that I would fail to protect the interest I’m supposed to protect even though I have not yet done or may , in fact, never even do so. Therefore, in the car example, I’ll be guilty of potential conflict of interest if there is a possibility or probability that I would sell the car to Marcia above the market price. It doesn’t matter that I have not done or may never even do so or that I have in fact sold it to her below the market price.

Whichever way – whether actual or potential – it is still conflict of interest. For, as the courts would say:

“It is not necessary that an officer or director have an intent to defraud or that any injury result for an officer or director to violate his fiduciary obligation.”

Similarly:

“Actual injury is not the principle upon which the law proceeds in condemning such contracts. Fidelity in the agents is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be TEMPTED by his own private interests to disregard that of his principal.” (Caps mine)

In other words, a person needs not actually intend or actually cause an injury to be found guilty of breaching the rules regulating conflict of interest. That, I think, is the true and proper position of the rule on the matter.

Enormity of the Rule

I’m sure you’re by now intimidated by the enormity of the conflict of interest rules. If you are, you’re justified. The rule is, indeed, superimposing. So, a great judge once put it this way:

“A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior… the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd.”

A fiduciary cannot behave like us, the ordinary people. The standard for her crushes through the roof.

But why? Let me explain: When someone repose trust in you to protect her interest, law and equity would not allow you the space to stab her in the back by sacrificing her interest on the altar of yours. Let’s put it into the context of a public office: when the people of a country entrust you with the power to protect their interest, the law will not allow you to put them in a situation where they can’t be sure whose interest you’re really protecting. It may be that you’re really protecting their interest. But that is not the point, as far as the subject is concerned. The real question is: would they doubt that? It is not whether you “have“, “will” or “would” betray them. It is whether you “could” betray them.

Taken from this perspective, one would easily realise that the rule is an effective tool against corruption. It would, if properly understood and enforced, do away completely with (if not reduce drastically) the cornerstones of corruption – cronyism, nepotism, favouritism, tribalism and whatnots. It would actually “protect the public purse.” The framers of our Constitution knew this pretty well. That is why they wrote in Article 284 that:

“A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.” (Underlining is mine)

Now read the provision again. Carefully. It would be obvious to you that the Article sets a standard. The standard is “potential” conflict of interest, namely, the officer merely “putting himself in the position.” The standard is NOT “actual” conflict of interest. That is, the officer needs not intend or actually cause an injury or a loss. Indeed, this is the true standard.

The Duty to Disclose

However, the law also acknowledges the limitation of such a rigid application of the rules. For example, the rule in its unbridled form would prevent principals from getting ‘good deals’, if these good deals are from their agents or fiduciaries. For example, going strictly by the rule, I wouldn’t be able to sell my car to Marcia even if my price was below the market price. In a public office context, it would prevent the Republic from benefiting from the acumen of very experienced industry players like Hon Ken Ofori Atta (who has been a top player in the finance and securities industry for over 30 years) from serving us as Finance Minister. Let’s face it: after 30 years in the industry, he would literally be ‘related’ to everyone and every entity in the industry.

The law knows this. So, to avoid this situation, it provides for what is invariably called a “safe harbour.” Safe harbour rules are intended to do 2 main things: (1) allow principals to have ‘good deals’ from fiduciaries; and, at the same time (2) have their interests protected from backstabbing by fiduciaries.

Therefore, while the unbridled rules on conflict of interest would not ordinarily allow me to sell my car to Marcia under the circumstances, it would if and only if 2 things happen: (1) if I disclose all the material facts about the ownership of the car to her without withholding any AND, also, (2) if, consequent upon such disclosure, I allow her to freely decide whether to go ahead and buy it, my ownership notwithstanding. In other words, disclosure of personal interest is an integral part of the conflict of interest rules. This is because the primary aim of the rules on conflict of interest is to prevent what is unfair; and, as the courts and scholars have always maintained, “nondisclosure by an interested director or officer is, in itself, unfair.” This is exactly where CHRAJ tripped.

Up Next

In the next part, I’ll attempt to explain how CHRAJ tripped by cutting the Commission’s report open.

The details of the report on what has come to be known invariably as the #KenBond saga would show that CHRAJ is not a ‘rundown’ institution as we often are made to believe. It really did a thorough job investigating this rather complex complaint; and did so within a relatively short period. However, there seems to be a fundamental problem with its decision, particularly the one in relation to the allegation of a breach of the conflict of interest rules. The problem is that its final decision is at war with the evidence on record.

As you may know, this kind of anomaly is often a function of at least 1 of 2 things: (1) misunderstanding of the relevant legal rules; or (2) misapplication of them. In the coming days (and, of course, depending on how the festivities go for me), I’ll attempt to show the gap between the evidence on the Commission’s record and its decision that allegation of breach of conflict of interest rules have not been substantiated.

I’ll begin by discussing some details of the proceedings, particularly how the Deputy A-G fared in his arguments before the Commission, not least because the Commission’s treatment of those arguments would, in a way, speak to the difficulty with the decision.

On Jurisdiction

The first thing that the Deputy A-G did was to try to make nonsense of the allegation of conflict of interest. He chose to do this, as many a lawyer would do, by trying to excise the conflict of interest issue from the jurisdiction of the Commission. He argued that the propriety or otherwise of the issue of 7-year and 15-year Bonds does not fall within the jurisdiction of the Commission. Unfortunately for the Respondent, the Commission didn’t think the Deputy A-G even understood the very nature of the complaints he seeks to oppose. This is what the Commission said at page 97:

“The Commission considers this submission by the Deputy Attorney-General and Deputy Minister of Justice as lack of appreciation of the nature of the complaint of conflict of interest made against the Respondent … His submission does not also reflect the true position of the law on the mandate of the Commission.”

The Relationship between BOG and the Players

One of the allegations made by the Complainant was that the Minister, in order to cook the deal for his cronies, side-stepped the BOG guidelines for issuing bonds. In order to defend the Minister against this allegation, the Deputy A-G needed, primarily, to demonstrate familiarity with the relationship between the players and the BOG. It appears he wasn’t very strong in this department either. So, the Commission found at page 99 as follows:

“We must point out here again that the Respondent misunderstood the relationship between the BOG and the Bookrunners who were recruited by the MOF after open tender as Transaction Advisors on longer dated bonds (such as the 7-year and 15-year bonds). Therefore, it is inaccurate to state that the “Bookrunners/ Transaction Advisors licensed by the bank of Ghana”. The BOG does not license Bookrunners/ Transaction Advisors. The correct position is that Securities and Exchange Commission licenses financial institutions including banks, some of which (banks) the BOG authorises as “Primary Dealers”, as eligible to participate in the auction of debt securities.”

MOF and the Investors

In his spirited attempt to extricate the Minister from the transactions, the Deputy A-G argued that the Ministry does not transact with any investor; and that “ALL transactions are carried out by Bookrunners designated by the Bank of Ghana as Primary Dealers.” The Commission found this argument, too, very troubling. See what the Commission had to say at page 100:

“The Commission notes a misstatement on the part of the Deputy Attorney-General when he submitted that ‘All transactions are carried out by Book Runners designated by the Bank of Ghana as Primary Dealers.’ As the Commission has explained already, Bank of Ghana only authorises banks as financial institutions to operate as Primary Dealers and to participate in auctions of securities.”

That’s not all, the Commission did a little bit of education as well. It said:

“Bookrunners are different and may not be banks. In fact, in the issuance of the bonds in questions – 5-yar, 7-year, 10-year and 15-year – many players were involved: Debt Management Section of the Ministry of Finance, Bank of Ghana, Primary Dealers and Bookrunners playing different roles. Therefore, ALL the transactions could not have been done any one of them.”

This implies that the Commission did not agree that that the Ministry did not deal one way or the other with the investors.

Up Next

If, (perhaps, when) I return, I’ll attempt an explanation of the nature of fiduciary relationship and conflict of interest rules and how this case is materially different from the Ablakwa case (on which the Commission relied).

Yesterday, the Deputy Attorney-General granted a media interview after a Supreme Court hearing in the case involving Mr Alfred Woyome and the Attorney-General. In the interview, the Deputy Attorney-General told the world that the Supreme Court of Ghana had ruled that it does not recognise the African Court on Human and People’s Court (ACtHPR). He even went further to offer several grounds of justification for the alleged Supreme Court ruling.

As it turned out later, the Deputy Attorney-General’s claim appears to be inconsistent with what actually happened in the Supreme Court during the hearing. Contrary to his claim, the Supreme Court did not give such a ruling. In fact, we now know that the Supreme Court did not even consider the ACtHPR or its order, particularly, as the order was directed to the executive (not the Supreme Court).

First of all, I believe strongly that the views expressed by the Deputy Attorney-General on the subject does not represent the view of the government in which he serves. His view on the matter does not also reflect the long-standing position of Ghana in the comity of nations. As a matter of fact and law, the Supreme Court of Ghana could not possibly arrive at the decision attributed to it by the Deputy Attorney-General. Ordinarily, therefore, the Deputy Attorney-General could have been ignored entirely and the matter left to wither out naturally.

However, it would be harmful to ignore his pronouncement. This is why: Just as domestic law, international law, too, has its own sources of law. One of international law’s sources of law is treaty law – the agreement between states or international organisations. Another is ‘custom’. ‘Custom’ is constituted by those behaviours of States which, though not written formally as law, are considered as binding. One way of determining a State’s custom is to aggregate what some of that State’s public officials say (or do not say) publicly in their capacity as State officials. In other words, the Deputy Attorney-General’s public statement, yesterday, could be an index in determining Ghana’s position not just in respect of the ACtHPR, but also in respect of other international courts or tribunals.

Ghana often presents its citizens to serve in international organisations and tribunals. Of recent memory are Judge Akua Kuenyehia of the International Criminal Court (ICC), Justice Anthony Benin of the ECOWAS Court of Justice and Chief Justice, Sophia Akuffo, who has served as President of this very ACtHPR. Interestingly, we are currently presenting Prof Henrietta Mensah-Bonsu of University of Ghana to the ICC to be elected as Judge in a few weeks. From this, it is easy to guess, pretty accurately, the adverse effect that the Deputy Attorney-General’s statement stands to have on the calculation of Ghana’s customary law position on the recognition of these international tribunals and, consequently, on the acceptability of our future candidates (which, of course, may even include the Deputy Attorney-General himself) for such positions.

The international law and relations field has become more competitive than ever; so much so that Britain has, for the first time in over 7 decades, lost its seat on the International Court of Justice to its former colony – India. While India’s efforts cannot be ignored, experts have named Britain’s inward-looking Brexit policy as a factor in the historic loss. International respect, reputation and recognition no longer come easily, if they ever did. Nations, in a bid to be relevant and competitive, are becoming increasingly open and integrated than ever. Openness also means a deliberate effort by State officials, big and small, to be outward-looking (rather than inward-looking). All this requires lawyers, judges and public officials of the local polity to have a broader (rather than narrower) view of their national constitution and its workings. Ghana, the first country South of the Sahara to join the international world; the lead proponent of an African continental central government; and a trending beacon of hope for Africa in the outer world, cannot afford to be inward-looking at a time when outward-looking matters most.

Because of the enormous advantages that come with outward-looking and the concomitant disadvantages that come with inward-looking, it would not be a great idea for our authorities to ignore the statement made by the Deputy Attorney-General on their behalf as if it never happened. They should denounce (if not condemn) it; and reinstate Ghana’s long-standing position on its relationship with international tribunals, particular the ACtHPR.

Truly, it would be most appropriate if the Attorney-General, together with the Foreign Affairs Minister, could utilise the earliest opportunity available to unequivocally and resoundingly reinstate Ghana’s traditional position on the subject to the international community, particularly the African Union. Indeed, it would even be more reassuring if His Excellency, the President (who himself is an international relations expert and who, as Foreign Affairs minster in 2005, led Ghana to ratify the Protocol that established the ACtHPR) could lead this effort.

Yesterday, I said in a Facebook post that the events currently happening in Zimbabwe is a gender issue. Funny though it may sound, it is a gender issue. This rather long note is to explain that post.

The Military’s Visit

Let’s look at what is happening, critically. First of all, the military is not in for a regime change. They made it clear that theirs is “not a military takeover”. They don’t even seem to have a problem with President Robert Mugabe, the man who has their political and legal mandate. They said they’re “only targeting criminals around him”. Clearly, they are only in for a regime consolidation.

Indeed, they’ve not said anything about the First Lady, Grace Mugabe. Actually, they did – they didn’t think she’s a part of the President’s family. They told the whole world that the President’s family was “safe and sound” at the time that no one knew where the President’s “wife” was. We later heard that she’s believed to be in Namibia or wherever. Add this to the regime consolidation agenda; and you’d readily know that the military doesn’t think the Mugabe regime would be best consolidated under her. They think the Vice President, Emmerson Mnangagwa, would be a better protector of the regime than the First Lady whom everyone suspects is Mugabe’s favourite.

Interestingly, we’re getting to know the military’s reasons for not preferring the First Lady. The principal reason is that she was not part of the liberation struggle that brought Mugabe to power and saw an end to the white minority rule over 4 decades ago. The other reason, which is supplied by the dominant media (rather than the military), is that she’s extremely profligate and ostentatious – she is “Gucci Grace”. The other reason is that she’s a schemer and usurper, who “worked” her way to the top. Remember, they don’t seem to accuse Mugabe, the head of the regime, of any of these “ills”. Only Grace. I’ll show you how and why all this is about gender.

The Liberation Struggle

Grace Mugabe is 52. This means that she was still a baby when the liberation struggle that Mugabe would lead started. She was about 10 when Mugabe became the Chairman of the Zimbabwe African National Union (ZANU) group. She was barely a teenager when Mugabe was sworn in as Prime Minister. All this means she couldn’t possibly be a part of the struggle, even if she wanted to. But this is about age (not gender). Nonetheless, even if she was an adult at the time, she still couldn’t be at the forefront of the struggle like Mnangagwa and the other male comrades. The reason is gender. She’s a woman and society has made it impossible (if not extremely difficult) for a woman to be at the forefront of such struggles.

We can blame her for being a woman, but no one can deny that she, like Mnangagwa, spent her entire adult life toiling for the regime. But why is her contribution not recognised? The answer is gender. Society allocates roles based on gender. So, even before she was born, her role was well cut out and defined – she could be a secretary (not a boss). That’s the closest she could come to the top. And, if she performs that office well, she could become a “wife” to the boss. That’s it.

To drive home the point better, allow me to wax a little bit philosophical here. We often argue for “equal pay for equal work”. But, I think, the principle in that phrase should be deeper than ‘equal money’. The principle should be ‘equal recognition’. The gender issue should not be limited to the roles, as some may want to have it look like. It should also extend to the recognition that society gives to the roles, especially where the roles are hard changing and where a huge majority have already performed and are accustomed to performing those roles. Indeed, we don’t want women to be the only human beings who take care of the kids and the home. Because of this, we say “send the girl child to school”. That is great. Way to go. But, you see, there is this huge army of ‘girlchilds’ currently performing the house-wife roles. How do they get equality and justice? That is exactly where ‘equal recognition’ comes in.

If we, indeed, agree that the family is the nucleus of society. If we agree that there cannot be a great society without great families. Then, someone somehow must grow the family. And, if we ‘recognise’ the family, then, it is hypocritical on our part to keep according higher recognition to ‘non-family’ roles than to ‘family roles’. Then, it is hypocritical to give a higher recognition to the person who goes to talk in public for a few hours than to the person who takes care of the public talker, his kids and home the whole day and night back-to-back. Then, it is hypocritical to give a higher recognition to the politician than to the person who grows the families over which the politician lords. We need to give equal recognition to the roles, even as we boost the fight for de-genderisation of the roles. That is transitional gender justice. That is equality.

Now, let’s come back to Zimbabwe. Mugabe is 93 and Grace is 52. We’re dealing with an age gap of almost 40 years. She was Mugabe’s secretary. She probably excelled at that role (and, look here, I’m not responsible for what you’re thinking at this moment); and later became his wife and First Lady. Then, they recognised her as the head of the ZANU-PF Women’s wing. That’s all. That’s the highest recognition society is ready to give her. No one expects her to be President of Zimbabwe; certainly, not when the Mnangawgwas of this world are still around. Do you know why? The answer is gender.

Add the insane age-gap to the fact that she’s the leader of the ZANU-PF women’s wing. Go on, check the population of women in Zimbabwe and the ZANU-PF; and you’d immediately know (if you really want to) that she’s not really a “wife” to Mugabe. She’s probably the de facto President, while the 93-year-old male retains the recognition. You’d also know immediately that there’s no merit in the claim that she’s not contributed to the regime. Therefore, by saying that Grace has not contributed to the regime, the military, (and society for that matter) is simply refusing so recognise the role of women (be it secretaries, wives, First Ladies, head of women’s wing, whatsoever). It is just the same way that all societies always refused to recognise the army of women who took care of homes while the Mnangawgwas of this world were in the bush “struggling” for the liberation. The answer is simply gender.

Profligacy

She is accused of living a recklessly extravagant or wasteful life. I saw a short documentary titled “Gucci Grace”. It shows how much she spends shopping in Europe. The video also shows her sons, too, pouring a very expensive champagne on an even more expensive wristwatch. What this documentary doesn’t tell us, however, is that Mugabe himself has been an ardent client of Savile Row since the 80s. The documentary doesn’t also tell us that the sons in the video are also President Robert Mugabe’s sons. It tells us one thing: “A wise son brings joy to a father; a foolish son brings grief to a mother.” (Proverbs 15:20). So, the military, or no one for that matter, has a problem with the sons’ father, Robert. It is always Grace. Do you know why? The answer is gender.

Schemer

I’m not sure if this particular accusation is worth my time and keyboard. Look, which politician is not a schemer? Since when did they realise that she’s a schemer? What are the military chiefs doing in the Presidential Palace if not scheming to get their favourite into office? The accusation of scheming brings to mind what happened to another woman who got close to the Presidency, Joice Mujuru, Mugabe’s Vice President before Mnangawgwa. She was thrown out not just from the government but also from the party she served since she was a teenager. Her humiliation was for what? Scheming! It appears that everyone in Zimbabwe is allowed scheme except non-males. Do you know why? The answer is gender.

Conclusion

When I look at what is happening in Mugabe’s Zimbabwe, I see soldiers, I see ambitions, I see mismanagement, I see economic inequality, I see a stubborn 93-year-old man, I see die-hard pan-Africanists, I see the liberation struggle still going on, I see power struggle. But I see gender too.

Ongoing discussions on the SSNIT, UT Bank and Capital Bank issues seem to suggest, strongly, that we don’t really appreciate the role of companies governing boards. Let me attempt a simplified explanation of an extremely sophisticated subject – corporate governance.

The beginning point of the explanation is that companies are, in the eyes of the law, like human beings. They’re artificial persons. They’re born (by incorporation), they can marry (through mergers), divorce (through break-ups or split-ups), give birth (to subsidiaries), form families and associations (by grouping), acquire property, sue and be sued. In fact, they die, too. As a matter of interest, companies are, in a sense, even more powerful than humans – they can live, like, forever and, also, (through branches) be at more than one place at the same time.

However, companies, unlike human beings, don’t have eyes, brains or hands with which to function and exercise the enormous power they have. This is exactly where governing boards (boards of directors) come in. Boards are the eyes, brains and hands of companies. They exercise almost all the management powers of the company. The corollary to this is that boards owe a duty to act in the best interest of the company at all times.

However, because boards can’t do all the works of the company by themselves alone, they appoint executive managers to help with the day-to-day running of the company. Company executives, therefore, are merely board functionaries. They’re accountable to boards. This also means that boards are, to all intents and purposes, ultimately responsible for the acts of company executives. Boards cannot assign their fundamental duty to act in the best interest of the company to executive management. From this, it is obvious that being a board member of a company is a rather serious and largely not so very attractive job.

As it stands now in this town, however, we have made board membership just too attractive. This is evidenced by the fierce fight that we put up for appointment to governing boards of companies and statutory bodies. Particularly, every 4 years, after the general elections, we witness something like a ‘board-rush.’ Strikingly embarrassing, however, is the fact that a lot of the persons who clamour for these boards have just no damn clue of what happens in the industries within which their preferred boards operate and, obviously, no clue of their board duties.

All they often care about are board salaries, sitting allowances, travel opportunities (affectionately called “trips”) and other perquisites. That’s not all. They’re also often preoccupied with the search for the illicit – juicy opportunities for insider trading, contracts and job opportunities for non-qualified cronies, tribeswomen, party footsoldiers, boyfriends, etc. And guess what, in all this, we hardly hold board members in this town accountable for anything, ever, nothing! Rather, we reward them with more and more boards, terms in and terms out. We’ve sat aloof and watched boards ran down our companies, both state-owned and privately-owned, one after the other. Obviously, this has not helped us.

You see, there’s really nothing wrong with well-deserved, clean perquisites for board members per se. Because, it’s a damn hard, crazy, risky, hard job. And, indeed, elsewhere in developed economies, too, boards enjoy all these perquisites and even more. Unlike here, however, there, board members are held strictly to what is required of them. This bundle of requirements does not only include a duty to not lose value, it also includes a duty to increase value, sometimes, even with a set minimum rate. Because of this, boards, there, cannot afford to sleep on their power, be laid back or be merely ceremonial. There, board accountability regime is so stringent and, perhaps, so harsh that insurance companies, beginning from the 1930s, have devised insurance policies for indemnification of directors or their companies in case of liability.

We’ve reached a point in this town where board membership should be taken a little more seriously; where board accountability cannot be ignored any longer; and where board aloofness should be looked upon with hatred and fury. Indeed, recent developments in our economy, particularly with SSNIT, UT, Capital and, as we’re told, many more to come, are carefully leading us to the real cause of mismanagement and, perhaps, corruption in our institutions – governing boards. A focus on board accountability (and not just political accountability), therefore, may well be the breakthrough in our fight against mismanagement and corruption.

It is an abuse of language to even say that a petition is anonymous. Before we come to the veracity of this statement, however, let’s, first of all, distinguish between 2 situations: (1) where the investigative machinery involved in processing a petition is empowered to self-initiate its own investigative processes; and (2) where the investigative machinery is not empowered to self-initiate its own processes.

Suo Sponte

In the case where the investigative machinery is empowered to self-initiate its own investigative processes, it would not matter who initiates the process. That is because the machinery may do so by itself anyways. The draftswoman must have a reason for not excluding the machinery. She, probably, thinks it doesn’t matter who starts it. For example, the police may, by themselves, commence investigation into a crime upon reasonable suspicion. They do not need a complainant in order to do so. For this reason, lack of a complainant, ordinarily, cannot be a defence to a criminal charge. It doesn’t matter who brings the plaint. We may, therefore, make a claim that the ascertainment of existence of an initiator is not necessary where the investigative machinery is empowered to self-initiate its own processes.

Indeed, the question of self-initiation, was at the heart of the difficult contention in the Anane case. In that case the issue was whether CHRAJ could, on its own, commence an investigation even without an identifiable complainant or petitioner. Those who believed that CHRAJ could, did so because they believed that CHRAJ cannot be useful unless it be given the power to invoke its own jurisdiction. As it turned out, the courts thought otherwise – CHRAJ could still be useful without having the power to self-initiate investigations under Article 218(a). It is therefore necessary to state, resoundingly, that the Anane case was never about anonymity of the petitioner. It has no direct application in the present case.

The second situation is where the machinery is not empowered to self-initiate its processes. In this situation, the question ‘who initiates the process’ becomes indispensable. It appears that the initiator’s existence must always be ascertained in order to kick-start the process. This is because, here (unlike the first situation), it is not any person who may initiate the proceedings. And, at least, we know that, here, the investigating machinery in question or its components are such persons who are not clothed with capacity to initiate the proceedings. The draftswoman must have a reason for this exclusion. She, probably, thinks it matters who brings the petition. So, for example, our courts do not have the power to self-initiate proceedings. For this reason, lack of an existing plaintiff is always a valid defence to court proceedings. It matters who brings the plaint. We may, therefore, make a second claim that the ascertainment of the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.

But, even this second situation (where the ascertainment of the initiator is required), too, one needs to make another distinction between 2 sub-situations: (a) where the initiator exists and is disclosed; and (b) where the initiator exist but is not disclosed. Here, most adjudicatory bodies may allow a situation where the initiator, though existing, may not have her identity disclosed. This may be for a number of reason, e.g. where such disclosure may expose the initiator to some danger. But even here, the adjudicator would always have to ascertain the existence of the initiator. Therefore, the non-disclosure of an initiator who, in fact exists, does not take away from this second claim.

Article 146

Having set out the background, we may now have a discussion on the issue whether a “petition” which seeks the removal of a Justice from office (in this case, the chairperson of the Electoral Commission) under Article 146 of the Constitution, requires a petitioner. To be able to resolve this issue, it appears that one would have to, first, find out whether the investigating machinery (or its components) may self-initiate such removal proceedings.

Let’s note that the investigating machinery here includes, (1) the President (including the Vice President), (2) the Chief Justice, (3) any of the Justice of the Superior Court, (4) the Council of State and (5) the Judicial Council. Ordinarily, therefore, none of these persons, acting in such capacities, may initiate the process. Note, however, that the relevant component of the machinery here is the President. Therefore, the real question is whether the President may self-initiate the removal process.

At least, the tenor of Article 146 makes it very doubtful if the President could self-initiate the impeachment of a Justice of the superior court (and by extension, as in this case, the Chairperson of the EC). This is what 146(3) says:

“If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”

In other words, unless a President “receives” a petition, the process cannot start. Obviously, the President cannot “receive” a petition from herself. This, therefore, may give us a deep insight into whether the ascertainment of the initiator is necessary. In this regard, we may call in aid our second claim which states that “the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.” Accordingly, we may say that the ascertainment of the existence of the initiator is a prerequisite to the competence of the petition.

The Fable

But, I made an initial claim that “it is an abuse of language to even say that a petition is anonymous.” The basis of that claim is as follows:

The Oxford law dictionary defines a “petition” a “written application for a legal remedy or relief that is only available if statute or rules of procedure permit it. The dictionary goes on to give examples of petitions. It lists “a petition for divorce, a bankruptcy petition, an election petition, or a petition for winding up a company …” These examples may be instructive in helping us answer the question, may a petition be without a petitioner? In other words, may a divorce be sought without an existing petitioner? How about election petition? Bankruptcy? Probably not.

Secondly, the Black’s law dictionary, defines a petition as a “written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favor, privilege, or license.” This definition is apposite as relates directly to the historical antecedent of “petition.”

Under medieval English law and ‘forms of action’, a person usually petitions the King through the Lord Chancellor or the Exchequer for a “favour”, a “licence” or a “privilege.” This is in contradistinction with a “writ” which was the prescribed medium for asserting a “right.” A good example is where a person may petition the King for leave to be able to sue the King. This is because no one has the right to sue the King. You need the King’s “fiat” to be able to sue him. Indeed, those who are familiar with our legal history of law practice would know that this concept sipped into our law, where a person who wishes to sue the State had to first issue a process known as a “petition of right’ for the grant of a “fiat” in order to be able to issue a writ against the State. Let me, however, mention that this requirement is now abolished by Article 293(1) of the Constitution. So, now, you may sue the State without first issuing a ‘petition of right’.

This historical analysis may not be conclusive on the matter. However, it helps one to note that seeking a “privilege”, a “licence” or a “favour” necessarily requires that the grantor of such “privilege”, “licence” or “favour” knows the person who seeks and in respect of whom he would grant such “privilege”, “licence” or “favour”. Therefore, both definitions, when taken critically and within the proper context, makes the concept of “anonymous petition” rather fabulous, awkward and a little too disturbing at law.

For these reasons, I think, a petition, unless otherwise expressly excepted, must have a petitioner.

Events of the past weeks have led some to believe that the problems facing legal education in Ghana are caused by non-compliance with laws. That belief is unfounded. In fact, legality is not even one of the problems. The real problems facing legal education in Ghana today include expired approach to teaching, poor teacher-student ratio, poor access to trending learning materials, weak research base and unworkable rules on admission to the bar. All these lead to a very hectic, costly, almost-oppressive and highly unpredictable legal education process.

Efforts at Solution

Varied efforts have been made by the General Legal Council (GLC) and other stakeholders to help solve the problems. These efforts include the construction of a new law school building at the University of Ghana (UG), the renovation of the Ghana School of Law (GSL) facility in Makola, plans to build an ultramodern GSL training facility at Legon, prohibition of non-PhD-holders from teaching law in UG, recruitment of more lecturers at both UG and GSL, etc. However, the most dramatic effort is what may be called ‘democratisation of the LL.B. program’. This saw a paradigm shift from the policy which gave exclusive mandate to UG to award the LL.B. degree to the current situation where almost every degree-awarding institution may.

However, the democratisation process did not come without its own attending challenges. It has seen more LL.B. degree holders willing to be enrolled at the bar than the GSL could admit for professional training. To solve this problem, the GLC had to increase admissions to the GLS from a little over 50 in the early 2000s to about 250 last year. This move also came with the creation, in 2011, of 2 outstation campuses of the GSL, one in Kumasi and another in eastern Accra. At a point, the GSL also used a quota system of admission, where each LL.B. awarding university was given a quota in respect of the number of their LLB graduates to send to the GSL.

Automatic Admission

From this background, it may be pretty much obvious that the problems facing legal education has grown in genre and scope, giving birth to all manner of activists trying furiously, though in good faith, to fight for change. It is, however, even more obvious that the problem that concerns the activists most is not any of the above, but rather one that has to do with the number of persons that may be admitted to the bar each year. This claim is evidenced by events characterising this year’s GSL admission process, where activists have asked that all the over 3,000 LL.B. holders in Ghana be admitted to the GSL without any further criteria for scrutiny.

There may be many arguments in favour or against the automatic admission campaign. However, only a very few persons may deny the fact that the campaign is mono-dimensional as it seems to have no regard for the other more serious problems facing legal education in the country, e.g., quality of training. Indeed, one may even say that the automatic admission campaign bears strong features of fundamentalism and overly-generous obsession with high numbers and only diverts attention from the more serious problems.

Deinstitutionalisation

Another call that is often made towards the resolution of the problem is one which calls for deinstitutionalisation of the professional bar training program. This call would see the abolishing of the GSL and the reconstitution of the GLC’s Board of Legal Education into an examination (rather than a training) body. Of course, this appears to be a more progressive approach when all is said and done. The question, however, is how the deinstitutionalisation approach would resolve the number problem, which it is often proffered to solve?

In answering this question, the apostles of deinstitutionalisation would say that the teeming number of universities running law programs would develop the capacity to absorb and handle the numbers. This is true; but only true if one assumes that the law student’s only and ultimate interest is having legal training for the sake of it. The argument hardly speaks to the issue of numbers when taken in its proper context, which is that the average law student’s ultimate interest is to become a lawyer and not just to have legal training. To become a lawyer, the law student must move beyond professional legal training (to be offered by the universities) to being enrolled at the bar. Therefore, while the various universities may have the capacity to offer professional legal training to the teeming number of persons seeking to become lawyers, they have no power whatsoever to determine which or how many of their many graduates end up becoming lawyers.

The power to admit persons to the bar vests solely with the GLC. This also means that it is only the GLC (not the universities) that could resolve the number issue. It also means that no serious progress could be made in respect of numbers unless the GLC is convinced that Ghana needs more than the current 250 new lawyers being admitted in a year. From this background, therefore, the deinstitutionalisation approach, like its predecessor democratisation of LL.B. approach, unless coupled with a deliberate and concerted effort at convincing the GLC to increase the number of persons admitted to the bar, would merely portend another situation where an army of “trained lawyers” would wait in agony and frustration, perhaps, forever to be admitted to the bar.

Way Forward

Going forward, it behoves stakeholder of legal education in Ghana to take steps to have a comprehensive dialogue leading to practicable proposals to the GLC in respect of the following:

Preferred teaching approach in law schools;

Minimum qualification for law teachers;

Minimum qualification for admission to the LL.B. program;

Accreditation criteria for institutions that will award LL.B. degrees;

Deinstitutionalisation of professional law training program;

Ghana’s need for lawyers, leading to an objectively determined number of lawyers to be admitted to the bar each year for the next 10 years;

Effective pupillage program; and

Cost of legal education.

The stakeholders to this dialogue should include the following:

The General Legal Council,

The Ghana Bar Association,

The National Accreditation Board,

Deans and directors of law faculties and schools;

The National Union of Ghana Students (and law student associations),

Law teachers’ associations, and

Proprietors of law schools.

Conclusion

In all, it may not be false to say that the current agitation over the number of persons to be admitted to the Ghana bar would see no end until and unless the GLC is convinced with credible evidence that Ghana needs more lawyers than the current rate of enrolment. Such evidence, sure, would not come from dry legal arguments of doubtful integrity. Such evidence may only be had from sound economic, social and political policy analysis and considerations.